by Karl Steinberg, MD, CMD, HMDC

Readers of The WAVE will recall that last year, a judge ruled Health & Safety Code 1418.8, the Epple law, unconstitutional as the result of a lawsuit (CANHR v. Chapman).  The law permits the nursing home’s interdisciplinary team (IDT) to make decisions and consent to treatments for incapacitated (lacking decision-making capacity), unbefriended (having nobody willing or able to make decisions on their behalf) nursing home residents.  Under the ruling, the law could no longer be utilized to consent for treatment with antipsychotics, or to withdraw or withhold “life-sustaining treatment,” although somewhat perplexingly, it could be used for hospice.  

Earlier this year, both parties in the lawsuit (the California Department of Public Health [CDPH] and CANHR [California Advocates for Nursing Home Reform] appealed this decision, although for different reasons--CANHR because it did not go far enough in taking away the ability of the IDT to decide on behalf of patients, and CDPH because it will make the provision of adequate and appropriate care for this patient population very problematic.  Essentially if the ruling stands, a court order would be required for any decision to initiate or increase the dose of an antipsychotic, or to withdraw or withhold the most aggressive types of treatment for a patient--even one with extremely advanced dementia.  CALTCM, CAHF (California Association of Health Facilities), CHA (California Hospital Association) and CMA (California Medical Association) all felt this ruling was inappropriate and would harm many nursing home residents--as well as make their admission or retention in nursing homes very difficult, perhaps requiring them to back up in acute care hospitals since placement will be an issue.  Clearly, this is not appropriate care for advanced dementia patients.  So all of our organizations requested CDPH to appeal the ruling.  The appeal will be heard in early 2017.

In the meantime, Senator Hernandez planned to carry a bill, SB 503, that would create a mechanism for the nursing home to beef up the IDT process in an effort to ensure adequate due process for the resident. This would have involved a type of administrative hearing process or review, where an “independent” medical consultant and an “independent” patient advocate--although under the terms of the bill, the nursing home would be paying both of them--would participate in or review the conclusions of the IDT and ensure that any decisions would be in line with accepted medical practice and in the best interests of the resident.  CALTCM did not take a formal position on this bill:  While it would be far superior to requiring a court hearing (which likely would almost never occur for a variety of reasons including cost, wait time, and the inability of these residents to participate), it also created a very prescriptive process that may be unrealistic as to implementation.  CAHF, CMA and CHA took an “oppose unless amended” position on this bill.  CANHR, not surprisingly, opposed it as not being onerous enough as far as the process.  

SB 503 has now been pulled off the calendar and will not be voted on during this legislative session, since with all of these organizations opposing it, it would be virtually impossible to pass.  After it was pulled, CANHR took credit for the withdrawal of the bill, but that seems somewhat arrogant and misleading, considering that the combined opposition of almost all of the actual stakeholder organizations probably had much more of an impact.  It is probable that something similar will be back next year, but the appeal of the CANHR v. Chapman case may be decided before any legislative fix could be implemented.  If the appeal upholds the original decision, it will be a sad day for many of the several thousand estimated residents of California nursing homes who have benefited from this process over the last couple of decades, and for those of us who care for them--who will both be unable to prescribe needed medication to a few, and who will be forced to provide cruel and excessive interventions to virtually all of them, at least until the day we ship them to the hospital.

We can only hope that reason will prevail, and especially that whatever the outcome, our incapacitated, unbefriended residents will be able to get compassionate and appropriate care, given by the people who know them best (our CNAs, nurses, activities personnel, physicians and others), as their lives come to a close--and not be subjected to bewildering, painful, and inappropriately aggressive medicalization of their dying process.